Leonard R. Kahn, Plaintiff-Respondent v. General Motors Corporation, Defendant-Petitioner

64 F.3d 675 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Leonard R. KAHN, Plaintiff-Respondent, v. GENERAL MOTORS CORPORATION, Defendant-Petitioner. No. 437. United States Court of Appeals, Federal Circuit. Aug. 7, 1995. Before ARCHER, Chief Judge, SKELTON, Senior Circuit Judge, and NEWMAN, Circuit Judge. ON PETITION FOR PERMISSION TO APPEAL ORDER PAULINE NEWMAN, Circuit Judge. — 1 — General Motors Corporation petitions for permission to appeal the December 27, 1994 order certified by the United States District Court for the Southern District of New York as involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. Sec. 1292(b), (c)(1). Leonard R. Kahn opposes. — 2 — On June 19, 1995, the district court certified the December 27, 1994 order for immediate appeal pursuant to 28 U.S.C. Sec. 1292 (b), (c)(1). The district court stated that two controlling questions of law were: — 3 — (1) Whether the Court's reliance on DX-138, which was not admitted into evidence, was reversible error; and — 4 — (2) Whether General Motors may raise as a defense Kahn's lack of legal title to the '994 patent[.] — 5 — The district court also certified, pursuant to Mr. Kahn's contingent suggestion for certification, an October 23, 1994 order concerning whether Kahn waived his right to a jury trial. — 6 — In considering the issues and premises, the petition is granted. The issue decided in the December 27, 1994 order was Mr. Kahn's right to bring this action. That issue is accepted for interlocutory appeal, on petitioner's argument that if that right is not present the ensuing trial of the merits can be avoided. The status of the order of October 23, 1994, also certified by the district court, is unclear. Clarification is requested. IT IS ORDERED THAT: — 7 — (1) The petition for permission to appeal is granted. — 8 — (2) General Motors' briefs shall be filed within 30 days of the date of this order, Mr. Kahn's briefs within 25 days thereafter, and any reply within 10 days.